Failure to diagnose cases require strong representation

A failure to diagnose case is built backward from the patient’s outcome to the moment a correct diagnosis was still possible. The work is to show what the physician knew or should have known at each visit, what a careful physician in the same specialty would have done with that information, and how much better the patient’s outcome would likely have been if the condition had been caught in time. In Texas, that work has to be done on a statutory timetable, and much of it rests on the review of qualified physicians.

At Davis & Davis, attorneys Steven R. Davis and John A. Davis, Jr. represent Texans harmed by failure to diagnose and other acts of medical negligence. This post focuses on how these cases are put together and what medical reviewers contribute at each stage. For the reasons diagnoses go wrong in the first place, see our guide to how the diagnostic process breaks down, and for the basic legal test, see whether failure to diagnose is medical malpractice in Texas.

The Two Forms of Diagnostic Failure

Medical malpractice involving diagnosis generally falls into one of two categories, and the category shapes how the case is investigated.

Failure to Diagnose

This occurs when a physician evaluates a patient who has a diagnosable condition and reaches no diagnosis at all. The patient leaves without treatment for a disease that is already present and progressing. Over time, that disease may advance from a treatable stage to one where curative treatment is no longer available. The investigation in these cases centers on the missed opportunity: the test that was not ordered, the symptom that was not followed up, or the referral that never happened.

Misdiagnosis

A misdiagnosis occurs when the physician recognizes that something is wrong but identifies the wrong condition. The patient may receive treatment for a disease they do not have while the actual condition goes unaddressed. These cases often involve two sources of harm, the effects of the unnecessary treatment and the progression of the untreated illness, and each has to be documented separately.

Step One: Reconstructing the Diagnostic Timeline

Every case starts with the complete medical record. That means office notes, emergency department charts, nursing notes, lab and imaging orders, the results themselves with their timestamps, radiology reports, messages between providers, referral records, and discharge instructions. Records often come from several sources, including a primary care office, an urgent care clinic, a hospital, and an outside lab, and gaps between those sources are where diagnostic errors frequently hide.

From those records, the legal team builds a visit-by-visit timeline. Each entry records what symptoms the patient reported, what the provider documented, what was ordered, what came back, and what the patient was told to do next. The patient’s own account matters here as well. A written timeline of symptoms, calls to the office, and instructions received can fill in what the chart leaves out.

Step Two: What Medical Reviewers Do

Texas does not let a jury decide what a physician should have done based on common sense alone. The standard of care and causation must be supported by physicians qualified to speak to them, and that review shapes the case from the start.

Standard of Care Review

A reviewing physician who practices in the same or a closely related field reads the timeline and the records and answers a specific question: given what this provider saw at this visit, what would a reasonably careful physician have considered, ordered, or communicated? The reviewer looks at whether a reasonable list of possible causes was considered, whether the tests matched the symptoms, whether abnormal results were acted on, and whether the patient was given appropriate follow-up instructions.

Causation Review

Causation is often the hardest part of a diagnostic case. A physician familiar with the disease must explain how the condition would likely have progressed with timely diagnosis and treatment, and how it actually progressed. Texas does not allow recovery for the loss of a less than 50 percent chance of a better outcome, under the Texas Supreme Court’s decision in Kramer v. Lewisville Memorial Hospital. That means the medical evidence must show that a timely diagnosis more likely than not would have changed the result. Our article on the challenges of proving causation covers this issue in more detail.

Damages Review

Treating physicians, life care planners, and economists may also be needed to document future medical needs, lost earning capacity, and the long-term effects of the delay. In cases involving death, the analysis must account for the losses suffered by surviving family members, including economic support and the loss of companionship.

Step Three: Meeting Texas Chapter 74 Deadlines

Health care liability claims in Texas are governed by Chapter 74 of the Civil Practice and Remedies Code, which sets several procedural requirements that shape how a case is built:

• Pre-suit notice: Under Section 74.051, written notice of the claim must be sent to each physician or provider at least 60 days before a lawsuit is filed, along with the medical authorization form required by Section 74.052.
• Report from a qualified physician: Under Section 74.351, a written report and the reviewer’s curriculum vitae must be served on each defendant within 120 days after that defendant files its answer. A missing or deficient report can lead to dismissal.
• Filing deadline: Under Section 74.251, a claim generally must be filed within two years from the date of the treatment or, for a course of treatment, from its completion. Texas does not apply a general discovery rule to these claims, children under 12 have until their 14th birthday, and a 10-year statute of repose sets an outer limit.

Because the medical review has to be substantially complete before the 120-day report is due, and because notice must precede suit by 60 days, the practical time available is shorter than two years suggests. Our article on the statute of limitations for medical malpractice explains the timing rules further.

Step Four: Accounting for Damages and Caps

Once the liability picture is clear, the case must capture the full scope of the patient’s losses. Medical expenses are often the most visible, but future treatment, rehabilitation, lost earning capacity, and the non-economic toll of pain and mental anguish also require careful documentation.

Texas limits non-economic damages in health care liability claims under Section 74.301. Recovery against all physicians and individual providers combined is capped at $250,000 per claimant, and recovery against health care institutions is capped at $250,000 per institution and $500,000 for all institutions combined. Economic damages such as medical bills and lost earnings are not subject to those caps. Our article on whether Texas caps medical malpractice damages explains how the caps apply.

Davis & Davis: Representing Texas Patients When It Matters Most

Our trial team has spent years listening to clients describe what happened when a diagnosis came too late: the symptoms that were dismissed, the tests that were never ordered, and the results that were never acted on. We work with qualified physicians to reconstruct the timeline, test the standard of care, and evaluate causation before a case moves forward. Every case is different, and we cannot promise a particular outcome.

We handle these cases with no upfront fees, and how case costs are handled is explained in our written fee agreement. To schedule a free, confidential case evaluation, please complete our contact form.

Frequently Asked Questions About Building a Failure to Diagnose Case